CA Unpub Decisions

The juvenile court sustained allegations of a Welfare and Institutions Code section 602 petition alleging the juvenile committed grand theft person and attempted second degree robbery. The juvenile appealed from the courts order of wardship, claiming the evidence was insufficient to support a finding of either offense. He also claimed a probation condition ordering him to stay away from areas where users congregate was unconstitutionally vague and overbroad. The juvenile further contended the court erred in failing to declare on the record whether the grand theft person wobbler offense would be a misdemeanor or felony for an adult convicted of the same offense. Finally, the juvenile argued the maximum term of commitment set by the court should be stricken as both erroneous and unnecessary where the disposition the court ordered was home on probation.
In Court's initial decision Court concluded the evidence did not support a finding the juvenile took the property from the person as is required for the offense of grand theft person. Court thus reduced the offense to misdemeanor petty theft, a lesser included offense of grand theft person. Court also modified the courts order with respect to the challenged probation condition and affirmed the courts order in all other respects. The Supreme Court granted the Peoples petition for review. In In re Jesus O. the Supreme Court concluded the evidence of the juveniles intent to steal, plus the later taking of property which had been on the victims person, was, in combination, sufficient to sustain the grand theft person offense. Accordingly, the Supreme Court reversed and remanded the matter to this court for further proceedings consistent with its opinion.
On remand the parties filed letter briefs addressing omitted and other issues. Court now affirm the juvenile courts findings sustaining the allegations of the petition.

In a jury trial, Steven Trigger Gallegos (Gallegos) was convicted of kidnapping for robbery (Pen. Code, 209, subd. (b)(1); count 1); kidnapping during carjacking ( 209.5, subd. (a); count 2); two counts of second degree robbery ( 211; counts 3 & 6); carjacking ( 215, subd. (a); count 4); and attempted murder ( 667/187, subd. (a); count 5). With respect to counts 1 through 5, the jury found that Gallegos had personally inflicted great bodily injury and had used a deadly or dangerous weapon, a knife. ( 12022.7, subd. (a), 12022, subd. (b)(1).) In the same jury trial, Gallegos and Charles Casper Cepeda (Cepeda) were each convicted of two counts of first degree murder ( 187, subd. (a); counts 7 & 8), and simple kidnapping ( 207, subd. (a); count 9). For the murder of Carmen Cepeda in count 7, the jury found special circumstances of financial gain and that the perpetrators had committed more than one offense of murder. ( 190.2, subds. (a)(1) & (a)(3).) For the murder of Steven Kimzey in count 8, the jury found special circumstances that the victim was a witness who was killed to prevent his testimony and that the perpetrators had committed more than one offense of murder. ( 190.2, subds. (a)(3) & (a)(10).) With respect to the murder and the simple kidnapping convictions, the jury found that Gallegos had personally discharged a firearm proximately causing death ( 12022.53, subd. (d)), and as to Cepeda, that a principal was armed with a firearm ( 12022, subd. (a)(1)). In a court trial, the trial court made findings that Gallegos had a prior conviction that qualified him for sentencing pursuant to the Three Strikes law and that he had served a separate prison term. ( 667, subds. (b)(i), 1170.12, 667.5, subd. (b).) For Gallegos, at sentencing, the trial court imposed a determinate term of 22 years (a doubled determinate term of 11 years), plus two consecutive terms of life without the possibility of parole enhanced by terms of 25 years to life for the use of a firearm proximately causing death, plus a consecutive term of 14 years to life (a doubled life term).
For Cepeda, the trial court imposed two consecutive terms of life without the possibility of parole, with a one year term applied to each term for the two enhancements of a principal armed with a firearm. On appeal from the judgments, the defendants raise the following claims: (1) Cepeda contends that the trial court committed Marsden error when it failed to grant Cepedas several motions for the substitution of counsel (People v.Marsden (1970) 2 Cal.3d 118 (Marsden)); (2) Cepeda and Gallegos make different contentions as to the trial courts failure to sever counts 1 through 6 (the Jimenez and Manukyan crimes) from counts 7 through 12 (the murders); (3) Cepeda contends that he was denied his Sixth Amendment right to a speedy trial; (4) Cepeda contends that he was denied due process as the trial court failed to inquire into his mental competency, and trial counsel was constitutionally ineffective as he failed to investigate Cepedas mental competency; (5) Gallegos contends that he was denied due process and a fair trial by the admission of certain portions of the reporters transcript of E.A.s plea bargain; (6) Gallegos contends that the use of gang evidence denied him due process and a fair trial; and (8) Gallegos contends that the cumulative effect of the errors requires a reversal. Court find no merit in the contentions and affirm the judgments.

An attorney filed a collection action against former clients. The clients asserted an affirmative defense and a cross-claim of fraud, alleging the attorney misrepresented his level of experience and expertise in real estate litigation involving property line disputes and engaged in fraudulent billing practices, which caused them substantial financial and emotional injury. A jury found the attorney committed fraud, but awarded no damages to the clients. The trial court denied the clients motion for a new trial on damages, as well as the attorneys motion for judgment notwithstanding the verdict on the contract claim. The court also denied the clients requests for attorney fees and costs on the ground neither party prevailed.
Court conclude the clients are entitled to a limited retrial on damages and, as prevailing parties, to an award of reasonable attorney fees and costs. Court also conclude the trial court did not err in excluding certain expert witness testimony, nor in denying the attorneys motion for judgment notwithstanding the verdict.

Appellant was convicted of one count of attempted premeditated murder (count 1), three counts of assault with a firearm (counts 2, 3, and 4), one count of shooting at an occupied motor vehicle (count 6), and related allegations. He was sentenced to an indeterminate term of 40 years to life on count 1, consecutive to a determinate term of 33 years on counts 2, 3, and 4. He argues, and respondent concedes, that count 6 must be stricken due to the statute of limitations. Appellant and respondent further agree that there are problems with the length of the street gang enhancements that were imposed on counts 3 and 4. The only disputed issue is the effect of Cunningham v. California (2007) 549 U.S. [127 S.Ct. 856](Cunningham) on imposition of the upper term on count 2.
Court strike count 6, modify the sentence on the gang enhancements on counts 3 and 4, and otherwise affirm.

Defendant appeals from the judgment following his jury trial and conviction of transportation of cocaine for sale between noncontiguous counties, possession of cocaine for sale, and misdemeanor destruction of evidence. (Health & Saf. Code, 11352, subd. (b), 11351; Pen. Code, 135.) The court suspended the pronouncement of judgment and granted appellant three years' probation on terms and conditions, including serving 120 days in county jail. Appellant contends that the trial court committed instructional error. Court affirm.

Plaintiffs sued American International Group and its subsidiary Granite State Insurance Company for damages arising out of Granites termination of SoftExs workers compensation insurance policy. The trial court sustained a demurrer to Zabaskys cause of action for intentional infliction of emotional distress and granted defendants motion for summary judgment on SoftExs causes of action for breach of contract and interference with economic advantage. Plaintiffs appeal from the judgment. Court affirm.

Defendant appeals the judgment entered following his conviction by jury of four counts of robbery in which Batchelor personally used a dangerous or deadly weapon and a principal was armed with a firearm. (Pen. Code, 211, 12022, subds. (a)(1) and (b)(1).) Batchelor admitted a prior conviction of residential burglary in Florida in 1981 within the meaning of the Three Strikes law ( 1170.12, 667, subds. (b) - (i)) and section 667, subdivision (a)(1). The trial court sentenced Batchelor to a prison term of 22 years. Court reject Batchelors claim of sentencing error and affirm the judgment.

Defendant appeals the judgment entered following his conviction by jury of two counts of forcible lewd act upon a child under the age of 14 years, one count of lewd act upon a child under the age of 14 years and one count of making a criminal threat. (Pen. Code, 288, subd. (b)(1), 288, subd. (a), 422.) The jury found that, in the commission of each count of lewd act, Spencer committed an offense specified in section 667.61, subdivision (c), against more than one victim, thereby triggering the provisions of the One Strike law. The trial court found Spencer had three prior convictions within the meaning of the Three Strikes law ( 667, subs. (b)-(i), 1170.12) and section 667, subdivision (a)(1), and sentenced Spencer to four consecutive life terms with a mandatory minimum term before parole eligibility of 265 years.
In this appeal, Spencer claims three of his four convictions are not supported by sufficient evidence and admission of propensity evidence under Evidence Code section 1108 violated his right to a fair trial. Court reject these contentions and affirm the judgment.

Defendant appeals the judgment entered following his conviction by jury of first degree burglary and inflicting corporal injury upon a spouse or cohabitant. (Pen. Code, 459, 273.5, subd. (a).) The trial court sentenced Farlough to a prison term of four years. Court reject Farloughs claim the evidence was insufficient to support his conviction of burglary and affirm the judgment.

Defendant appeals from the judgment, by jury, extending his commitment to Atascadero State Hospital (ASH) as a mentally disordered offender (MDO) within the meaning of Penal Code section 2970. He contends the evidence is insufficient to prove that "by reason of his . . . severe mental disorder, [he] represents a substantial danger of physical harm to others . . . ." ( 2972, subd. (c).) He further contends the trial court erred because it failed to instruct the jury that his MDO commitment could be extended only if his severe mental disorder caused him to experience serious difficulty in controlling his behavior. Court affirm.

The District Attorney of Los Angeles County filed an information charging defendant and appellant Michael Dwayne Miller (defendant) with assault with a deadly weapon (Pen. Code, 245, subd. (a)(1)) and battery with serious bodily injury ( 243, subd. (d)). The information also alleged that in committing the assault with a deadly weapon defendant personally inflicted great bodily injury on the victim. ( 12022.7, subd. (a).) Defendant pleaded not guilty.
We appointed counsel to represent defendant in this appeal. After examining the record, counsel filed an opening brief asking this court to independently review the record in accordance with People v. Wende (1979) 25 Cal.3d 436. On January 3, 2007, we gave notice to defendant that counsel had failed to find any arguable issues and that defendant had 30 days within which to submit by brief or letter any grounds of appeal, contentions, or arguments he wished this court to consider. Defendant did not submit a brief or letter. Court reviewed the record and informed the parties that it appeared that the trial court erred in its calculation of defendants presentence credit. Court requested briefing from the parties on this issue. Court affirm the judgment of conviction, but order the abstract of judgment modified to reflect that defendant has been awarded a total of 248 days of presentence credit consisting of 166 days of actual custody credit and 82 days of conduct credit.

Defendant entered into a plea agreement pursuant to which he pleaded nolo contendere to one count of battery. His appeal purports to challenge the validity of the plea. His appointed counsel filed an opening brief in accordance with People v. Wende (1979) 25 Cal.3d 436 requesting this court to conduct an independent review of the record to determine if there are any arguable issues on appeal. After reviewing the record, Court affirm the judgment.

LaTanya P. (mother) and Eddie H. (father) appeal the trial court's denial of mother's Welfare and Institutions Code section 388 petition and the termination of parental rights to their daughter D.P. D.P. also appealed the latter ruling. Finding no error, Court affirm.

Defendant appeals from the judgment entered following his negotiated guilty plea to one count of failing to update annually his registration as a sex offender. Court order correction of the abstract of judgment, and as amended affirm the judgment.